But this, although, as we may well think, a sound conclusion, was not a
necessary one; and it was long denied by able statesmen, judges, and
lawyers. An elaborate and powerful dissenting opinion by Chief Justice
Gibson, of Pennsylvania, containing the most searching argument on the
subject with which I am acquainted, given in 1825,[22] reaches the
result that under no constitution where the power to set aside
legislative enactments is not expressly given, does it exist. But it is
recognized that in the Federal Constitution the power is given, as
regards legislation of the States inconsistent with the Federal
Constitution and laws.
It is not always noticed that in making our Federal Constitution, there
was an avoidance of any explicit declaration of such a power as touching
federal legislation, while it was carefully provided for as regards the
States. In the Federal Convention, there was great anxiety to control
the States, in certain particulars; and various plans were put forward,
such as that Congress should have a negative on state laws, and that
governors of the States should be appointed by the federal authority,
with power to negative state acts.
But all these, at last, were rejected, and the matter took the shape of
a provision that the Constitution and the constitutional laws and
treaties of the United States should be the supreme law of _the
respective States_; and the judges of _the several States_ should be
bound thereby, anything in the constitution or laws of any State to the
contrary notwithstanding. Later, the Committee on Style changed the
phrase “law of the respective States” to “law of the land.” But the
language, as to binding the judges, was still limited to the judges of
the several States. Observe, then, the scope of this provision: it was
to secure the authority of the federal system within the States.
Public-domain text, read in full here on John Shaqi.
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